One of the most profitable – if not culturally elevating – new movie releases this season is “The Hangover Part II,” which includes a character, played by actor Ed Helms, who wakes or sobers up to find that he has a tattoo on his face identical to the one on the face of boxer Mike Tyson. While movie-goers may consider this hilarious, “tattoo artist” S. Victor Whitmill, the creator of Tyson’s tattoo, has failed to see the humor in it. Indeed, he sued Warner Brothers for copyright infringement and filed a motion seeking a preliminary injunction barring the release of the movie. (Whitmill v. Warner Bros. Entertainment Inc.)
The motion for preliminary injunction was denied by Judge Catherine D. Berry, much to the relief of Warner Brothers. Whitmill’s attorney – apparently an adherent to the ‘glass is half full’ school of thought – issued a statement that, while disappointed with the ruling, he was pleased that the judge had indicated that his client had “a strong likelihood of success” on the merits of the case.
For its part, Warner Brothers has argued that its use of the tattoo is in the form of a parody and, hence, constitutes a legally permitted “fair use.” Barring such use, Warner Brothers maintains, would “stifle creativity” and thereby preclude, we assume, any possibility of The Hangover Part III.
According to an “expert” (reporterspeak meaning “someone who will offer an opinion without being paid”), this case presents some “interesting wrinkles” (as will, no doubt, Mr. Tyson’s tattoo when he ages). In this instance, Mr. Whitmill sued Warner Brothers, not Mr. Helms, and in any event, the tattoo in question was merely makeup which could be washed off. What if some over-enthusiastic Tyson fan had a real tattoo applied to his – or her – face? If a court were to find that the fan’s tattoo infringed Mr. Whitmill’s copyright, could the court order that it be removed or destroyed? Would the fan be required to wear a mask whenever venturing out in public? Similarly, if Mr. Tyson allows fans to take his picture, wherein the tattoo appears, is he conspiring in an infringement? Finally, does anyone really have the cajones to ask Mr. Tyson what he thinks about that last question?
The Lesson To Be Learned – drinking and driving do not mix; neither do drinking and tattoo parlors.